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Judgment
Mufti, J.—These cases raise a point of law of general importance, namely:
Whether the Jammu and Kashmir Agrarian Reforms Act, 1972 acts retrospectively on the pending cases? If so, what is the effect?
The Jammu and Kashmir Agrarian Reforms Act, 1972 (shortly called, 'the new Act') was enacted by the State Legislature in the year 1972. It
received the assent of the Governor on 27-11-1972 and was published in the Government Gazette on 9-12-1972. u/s 1 (3) it was to ""come into
force with effect from such date as the Government may appoint by a notification in the Government Gazette."" The new Act, as originally enacted,
admittedly came into force on 1st of May, 1973. Soon after it was amended retrospectively by Ordinances Nos. 1 and 5 of 1973. The operative
provisions of the new Act were to take effect from a date to be specified by the Government expressively described as 'appointed date', in the
Act. By notification SRO 183 dated 23-4-1973, the Government specified 1-5-1973 as the date from which these provisions would become
effective.
On the terms of its preamble, the new Act was designed to ""provide for comprehensive legislation regarding land reforms in the State of Jammu
and Kashmir."" The objects of the land reforms contemplated by the new Act mainly appear to be; (a) to abolish the system of absentee
landlordism including the allied forms of intermediaries; (b) to make the tiller the owner; (c) to set a ceiling on land-holdings. To put life into these
objectives a legislative scheme was formulated and fashioned into the new Act. By virtue of this scheme, new concepts of 'personal cultivation',
'ceiling area' and 'family' were introduced and definite meaning was given to these expressions in the new Act. The Legislature provided that all
rights and title in land not held in personal cultivation on 1st day of September, 1971 (hereinafter called, 'the material date') shall extinguish and vest
in the State. The only exception provided was that in favour of a mortgagee without possession whose rights in the mortgaged land were kept
intact. Even as regards lands held in personal cultivation, whether in ownership right, tenancy tight or otherwise, it was provided that if the lands so
held along with orchards owned by an individual and, where such individual was a member of a family, by all the members of the family, jointly or
severally, exceeded the ceiling area on the material date, the excess land shall vest in the State. For this purpose the expressions 'land' and
'orchard' were defined in the Act. The land owners who exceeded the ceiling area were allowed to select in the prescribed manner the land they
desired to retain for themselves within the ceiling limit. Subject to the rights of mortgagee without possession, lands within ceiling area were vested
in ownership right in the individuals or families, as the case might be, holding the same in personal cultivation on the material date. Lands which
became surplus, were to be disposed of by the Government in the prescribed manner. Provision was, however, made for resumption of land by
land-owners not in personal cultivation on the material date, though only under certain conditions and upto a limited extent It was enacted that such
a land-owner could resume a unit of land not exceeding three standard acres for personal cultivation on condition that his monthly income including
that of other members of the family, if any, to which he belonged, did not exceed Rs. 500/- per month and that he was an inhabitant of the area to
which the new Act applied. The new Act made it necessary for the owner, in whose favour the resumption was allowed, to bring the resumed land
into his personal cultivation within a period of eight months from the date he entered into possession failing which, it provided, his rights in such land
shall extinguish. The intendment of the new Act was to ensure even distribution of land ownerships on the basis of immediate possession, properly
so-called or in the extended sense contemplated by the expression ""personal cultivation"", and to snap the relationship of landlord and tenant and
allied... relationships reflecting mediate possession. While, therefore, providing that, the ceiling area shall not be exceeded at any time after the
commencement of the new Act, the Legislature also directed that, after such commencement, no tenancy shall be created nor even any acquisition
made, voluntarily or otherwise, except for personal cultivation or for industrial, commercial or horticultural purposes. The Legislature even
provided that any acquisition, transfer or dispossession of land made, after the commencement of the new Act, which contravenes the provisions of
the Act, shall be inoperative and the land so acquired, transferred, or disposed of shall vest in the State. So much for the plan regarding even
distribution of land ownerships. Feeling perhaps that this plan may remain lopsided, unless care was also taken to ensure even distribution of
agricultural income, that is, income accruing from the land and orchards, the Legislature, in its wisdom, incidentally, directed that annual tax shall be
imposed in the case of orchards in excess of 121/2 standard acres. Another limb of the Agrarian Reforms was to stabilise the position of tenants,
landless persons and persons belonging to scheduled caste over lands owned by others underneath and appurtenant to their dwelling houses. The
Legislature forbade the eviction of occupiers from such houses and conferred on them a right to acquire the land underneath and appurtenant to
these houses on payment of price to be determined under the new Act. In order to carry out the purposes of the new Act, a machinery was
provided under the Act and the Rules made thereunder with jurisdiction and power to determine questions and matters peculiar to the new Act, in
respect of which, alongside, the jurisdiction of the civil courts was ousted. That was broadly the scheme of Agrarian re-organisation contemplated
by the new Act
Having noticed the object and scheme of the Act let me now consider the question whether the new Act applies to pending actions. It is a
settled rule of construction that when the law is altered during the pendency of an action, the rights of the parties are determined according to the
law, as it existed when the action was commenced unless the new law manifests an intention to the contrary, either expressly or by necessary
implication. The only exception to this rule are enactments dealing merely with matters of procedure and, unless the language forbids that
construction, such enactments apply retrospectively to the pending actions. Thus the question whether or not an Act of the legislature applies to
pending actions is a matter of legislative intention. Such intention may be gathered from the object and scheme of the Act or from the express
provisions thereof.
The object of the new Act as we have noticed above, was to bring about a radical transformation in the existing pattern of land ownership. By
its preamble it professes ""to provide comprehensive legislation"", and inferentially, because of its comprehensiveness, it purports completely and
thoroughly to treat the subject and operate as a primary, if not the sole, rule of action. From its scheme, it is clear that it takes away or abridges
vested rights acquired in respect of land under the existing laws; creates new rights and obligations; provides new remedies and prescribes new
procedures: and, confers new jurisdiction. In that sense it is in fact retrospective and must as well reasonably be construed as retrospective in the
other sense that it applies to the pending actions, the reason is that when the new Act interferes with the existing rights, whether substantive or
those relating to action, respect for pending actions cannot be assumed. In any case all possibility of confusion and doubt appears to be prevented
by Section 47, That section reads:
The provisions of this Act and the rules made thereunder shall have effect notwithstanding anything contained in any other law or any custom or
usage or in any contract, express or implied, or in any instrument inconsistent with the provisions of this Act.
To my mind, this section holds a key to the construction of the new Act and the rules made thereunder. It clearly provides that the provisions of
the new Act and the rules made thereunder shall be primary rule of action. There is nothing in it to limit its operation to causes of action arising after
the new Act came into force. On its terms and, in any case, bearing in mind the principles of the new Act, it must be held to be applicable to
causes of action, whether arising before or after the commencement of the new Act. If that is so, as it really is, I must hold that the new Act and the
rules made thereunder apply to the actions pending when the Act came into force, I need hardly add that the sanctity accorded to the rules by
Section 47 will be available in respect of such rules only as are consistent with the new Act, for the principle is well settled that the rules made in
pursuance of a delegated authority to that effect must be consistent with the statute under which they are framed.
In the new Act and the rules thereunder applying to the pending actions, the resultant effect is that a pending action will continue or collapse
according as it survives or not the new Act and the rules made thereunder. That will generally depend on the facts and circumstances of each case,
the relief claimed therein; and, the particular provision of the new Act and the rules thereunder having bearing on it. Broadly speaking, a pending
action will survive if, by or under the new Act, the right be not acquired; and, even if not so acquired, it be not lost or destroyed either; and, the
remedy too be not barred or changed. It will not survive if, in consequence of the new Act, the right be acquired, lost or destroyed, and even if not
so acquired, lost or destroyed, the remedy be barred or changed.
In the view expressed above it was not perhaps necessary for the Legislature to make a specific provision for pending actions unless it wanted
to be more specific and desired to provide savings. The legislature has, in its wisdom, chosen to make such provision by Section 52, in respect of
pending actions arising under the Jammu and Kashmir Big Landed Estates Abolition Act, 2007; Jammu and Kashmir Tenancy Act, 1980; Jammu
and Kashmir Tenancy (Stay of Ejectment Proceedings) Act, 1966, Jammu and Kashmir Land Revenue Act 1996, and, Jammu and Kashmir
Consolidation of Holdings Act, 1962 (hereinafter called 'the specified Acts'). Section 52 reads:
All applications, suits and proceedings pending before any Revenue Officer, Civil or Revenue Court, any authority acting under the J. and K.
Consolidation of Holdings Act, 1962, or the Government on the appointed date under any of the Acts mentioned in sub-section (1) of S. 51 shall
abate:
Provided that nothing in this section shall apply to-
(a) applications or proceedings for recovery of rent (accrued due prior to the date appointed u/s 3) u/s 19-B of the Jammu and Kashmir Tenancy
Act, 1980;
(b) suits for sums payable on account of village cesses or village expenses;
(c) suits by co-sharer in village, holding or tenancy for a share of the profits thereof or for a settlement of accounts;
(d) suits for recovery of over-payments of rent or of land revenue or of any other demand for which a suit lies in revenue court;
(e) suits relating to emoluments of village officers;
(f) suits for sums payable on account of land revenue or of any other demand recoverable as an arrear of land revenue under any enactment for the
time being in force:
(g) applications and proceedings u/s 56 of the J. and K. Tenancy Act, samvat 1980;
(h) appeals or revision applications against orders passed u/s 5 or 6 of the J. and K. Big Landed Estates Abolition Act, Samvat 2007:
(i) proceedings u/s 12 of the Big Landed Estates Abolition Act, samvat 2007;
(j) proceedings under the J. and K. Land Revenue Act, Samvat 1996 to the extent to which these are consistent with this Act;
(k) proceedings saved under the proviso to sub-section (1) of S. 51 of this Act; and every such application, suit or proceeding may be instituted or
continued in accordance with the law under which such application, suit or proceeding, is or was instituted.
Before dealing with this section let me read Section 51. That section, leaving out the portions not relevant provides:
With effect from the appointed date the provisions of-
(a) The Jammu and Kashmir Big Landed Estates Abolition Act, 2007;
(b) The Jammu and Kashmir Tenancy Act, 1980;
(c) The Jammu and Kashmir Tenancy (Stay of Ejectment Proceedings) Act, 1966;
(d) The Jammu and Kashmir Land Revenue Act, 1996 and rules, standing orders or orders passed thereunder; and
(e) The Jammu and Kashmir Consolidation of Holdings Act, 1962 and the rules passed thereunder; shall so far as they are inconsistent with the
provisions of this Act, cease to apply in the areas to which this Act applies.
Though the word 'in' has been inappropriately used in this section, but analysing it properly what it says is that, barring exceptions provided in
the new Act, the specified Acts shall cease to apply to lands to which the new Act applies; and, that they shall so cease to apply to the extent of
their inconsistency with the new Act. It follows that the specified Acts will continue to apply to the lands not covered by the new Act and that, even
as respects lands, to which the new Act applies, they will cease to apply only to the extent of their inconsistency with the new Act. The implication
clearly is that a pending action arising out of the 'specified Acts will lose its efficiency and fail, if it is repugnant to the provisions of the new Act,
while it will retain its efficiency and continue, if it is consistent with the new Act. On logical construction of Section 51, therefore, the new Act does
not drive out all the pending actions arising out of the specified Acts but only such of those pending actions as are incon-sistent with it.
Let me now revert to Section 52. On a literal construction of this section all the pending actions arising out of the specified Acts, except those
mentioned in the proviso, shall abate. So viewed the section makes a clean sweep of all the pending actions arising out of the specified Acts
irrespective of the fact whether such actions are or are not con-sistent with the new Act. One could understand the logic if the axe fell on the
pending actions arising out of the specified Acts which are repugnant to the new Act but one simply wonders to find that the axe would equally fall
on such pending actions even if they are consistent with the new Acts. Clearly, therefore, the ordinary sense of the words used in this section leads
to obvious absurdities and anomalies. Even so I take it that we are bound to adhere to the ordinary meaning of the words used in this section
unless we can find anything in any other part of the new Act that will alter, modify or qualify the language used in this section. It is not difficult to see
that thing in Section 51. Section 52 is nothing but a phase of the subject-matter dealt with in Section 51. The latter section abrogates the specified
Acts to a limited extent and the consequences too are limited. The effect of such abrogation on the pending actions arising out of the specified
Acts, as we have already noticed, is that they will not sink in lump. Some of them will sink and some others not depending on which of them has
lost the efficiency and on which not. On the other hand Section 52, judged by its terms, provides that the pending actions arising out of the
specified Acts must sink, one and all. Manifestly the two sections are conflicting. It is one of the primary rules of construction that the provisions of
a statute must, as far as possible, be read so as to produce harmony and not discord. In my opinion, therefore, Sec. 52, must, in spite of the
difficulties created by the Draftsman in its logical construction, be held to apply, of course subject to exceptions in the proviso, only to those
pending actions arising out of the specified Acts as are incompatible with the new Act. The principle governing the determination of the question of
compatibility will be the same as laid down by me in respect of the pending actions generally while dealing with the effect that the new Act has on
the pending actions. On the terms of Section 52 such actions will include applications, suits and allied proceedings including appeals, reviews and
revisions arising out of the specified Acts.
Before us it was urged that Section 52 was not applicable to pending appeals and revisions arising under the specified Acts. The argument was
based on the doctrine of ejusdem generis and we were asked to read the word 'proceedings' as if the Legislature had used the words 'similar
proceedings'. But this principle applies if there is nothing to indicate that a wider sense was intended. Now a slight consideration of clause (h) of the
proviso to Section 52 providing saving in respect of appeals and revisions arising under Sections 5 and 6 of Big Landed Estates Abolition Act
seems to be sufficient to show that the word 'proceedings' must be interpreted in its wider sense as including, among other matters, appeals and
revisions; and, moreover, it is unimaginable that the legislature should have allowed the law to operate differently within the same class of cases as it
would amount to if the applications and the suits are declared to have abated where they are at the trial stage and declared to have remained alive
if they are at the appellate or revisional stage.
So far my approach to the problem, whether a pending action will continue or collapse after the new Act became operative, was purely
juristic. I have hinted at the broad principles which will be the determining factor. I have said, if I may repeat, that a pending action will continue if,
by or under the new Act, the right be not acquired and even if not so acquired, it be not lost or destroyed either, and, the remedy too be not
barred or changed. It will collapse if, in consequence of the new Act, the right be acquired, lost or destroyed; and, even if not be acquired, lost or
destroyed; the remedy be barred or changed, let me try to explain what it means in actual practice. Before doing so it will be necessary to draw a
statutory sketch of Sections 3, 4, 5, 7 and 40, as I may have to refer to these sections in the course of such elucidation.
These sections provide:
Section 3. ""Notwithstanding anything contained in any law for the time being in force, the right of ownership of any person and the right of any
intermediary in land not held by him in his personal cultivation on the first day of September, 1971, shall extinguish and shall vest in the State with
effect from the appointed date.
Provided that nothing in this section shall affect the right of a mortgagee without possession, if any, on the land.
Section 4. ""Notwithstanding anything contained in any law for the time being in force.-
(a) Where any land, including that retainable u/s 53, held by an individual in his personal cultivation whether a owner or as tenant or otherwise
along with orchards owned by him, in excess of the ceiling area on the 1st day of September, 1971, the excess land shall vest in the State with
effect from the appointed date subject to the right of a mortgagee without possession, if any, on the land;
(b) where aggregate land, including that retainable u/s 53, held by the members of a family, whether jointly or severally or both, in their personal
cultivation as owners or as tenants or otherwise along with orchards owned by them, is in excess of the ceiling area on the 1st day of September,
1971, the excess land shall vest in the State with effect from the appointed date, subject to the rights of mortgagee without possession, if any, on
the land;
Provided that each such individual or each such member of the family, as the case may be, shall have the option of selecting in the prescribed
manner, the land he desires to retain with himself within the limits provided for in sub-section (1) of S. 12;
Provided further that no land in a demarcated forest shall be so selected.
Provided also that portions of land shown in a survey number as not cultivated for reasons of such portions being under well, boundary, path,
private Kuhl or for similar other reasons shall be held by such individual or family in addition to ceiling area.
Section 5. ""The land vested in the State u/s 3 shall, subject to the provisions of Section 4 and to the rights of the mortgagee without possession
thereon, if any, and on payment of such levy in full as may be prescribed, vest in ownership rights in the person holding such land in personal
cultivation on the first day of September, 1971 or in the person claiming through him, anything contained in any law for the time being in force
notwithstanding.
Section 7. ""Notwithstanding anything contained in Section 3, any person whose monthly income including that of other members of the family, if
any, to which he belongs, does not exceed Rs. 500.00 p. and who was, on the first day of September, 1971, an inhabitant of the area to which this
Act applies and was an owner of land not held by him in his personal cultivation may resume a unit of land not exceeding three standard acres for
personal cultivation and for that purpose apply to the prescribed authority, in the prescribed manner within a period of one hundred and eighty
days from the appointed date. The prescribed authority shall hold an enquiry into the application in the prescribed manner and pass appropriate
orders thereon;
Provided that the selection of the unit of land proposed to be resumed under this section shall be made in the prescribed manner:
Provided further that no resumption for personal cultivation under this section shall be allowed from any land situate in a demarcated forest;
Provided also that any person serving in the Defence forces on any date between the 1st day of April, 1965 and the 1st day of September, 1971,
or on his death in military operations during that period, his widow and/or dependents, shall have a right to r‚sum‚ land upto the ceiling area if
the land is in the ownership of such person on 1st day of September, 1971, or is inherited by him after the first day of September, 1971 during his
continuance in service in Defence Forces, or is inherited by such widow and/or such dependent from such person:
Provided also that if any person having right to resume the land under the preceding proviso fails to apply for resumption within the period
mentioned above, the prescribed authority shall itself determine the land resumable by such person in the prescribed manner as if the application of
such person was duly made before it;
Provided also that the aggregate land held by an individual, or by all members of a family including that resumed under this section by such
individual or a member of such family, as the case may be, does not, along with orchards owned by the individual or all the members of the family,
exceed the ceiling area, where such individual or a member of such family falls within the purview of the third proviso and three standard acres in
other cases;
Provided also that no individual tenant, or the family if any, of which such tenant is a member, is left as a result of such resumption with an
aggregate area, including orchards, of less than two standard acres, provided, however, that the person applying for resumption shall be paid
compensation at prevailing market rates, in such manner and in such installments as may be prescribed, for such land or portion thereof which, but
for this proviso, he was eligible to resume;
Explanation.- For purposes of this proviso, the expression ""two standard acres"" shall include surplus land, if any, allotted u/s 10 to such tenant or
family of which such tenant is a member.
Section 40. ""Notwithstanding anything to the contrary contained in this Act or in any law for the time being in force or in any contract, instrument,
custom or usage, or in any judgment, decree or order of a Court, where on any land a person, who has been a tenant, or is a member of a
scheduled caste, or is landless, is in occupation of a dwelling house built at the expense of such person or his predecessor-in-interest on a site
belonging to an owner or any other person, such person shall not be evicted from such dwelling house.
(2) The prescribed authority may suo motu and, upon an application of such person, shall, after giving notice to such owner or such other person,
as the case may be, and after holding an inquiry and determining the price of the site of the dwelling house and the land immediately appurtenant
thereto, by an order in writing require such person to deposit the amount of such price either in lump within one year or in four equal annual
installments with simple interest at four per cent per annum on or before such dates as may be fixed by the prescribed authority. On the deposit of
such price in lump or of the last installment of such price, as the case may be, the site shall be deemed to have been transferred to such person free
from any encumbrance and the amount deposited shall be paid to such owner or other person, as the case may be.
(3) The prescribed authority shall, on payment of the prescribed fee, grant a certificate in the prescribed form to such person declaring him to be
the purchaser of the site and such certificate shall be conclusive evidence of the sale for purposes of registration.
Now take a pending action for pre-emption by a tenant-cultivator u/s 14 (a) firstly, of the Right of Prior Purchase Act. Here the right claimed
by the suitor is propriety possession by pre-emption. By virtue of Sections 3, 4 and 5 the land in suit vested, from the appointed date, either in the
suitor as tenant-cultivator or in the State or in none of them depending on whether the land in question is land, to which the new Act applied, and if
it so applied, whether the tenant cultivator exceeded or not the ceiling limit. Suppose it is found that the land in question vested in the suitor, he has
acquired the right under the new Act and the suit must then collapse. Next suppose that it is found to have vested in the State and not in the tenant
cultivator. In that case the right gets destroyed and the suit must collapse. Then suppose it is found to have vested in the State and not in the tenant
Cultivator. In that case the right gets destroyed and the suit must collapse. Then suppose it is found that it has neither vested in the suitor nor in the
State, but the vendee continues to be the owner. In that case the right subsists and the suit must continue. In the same case assume that the suit is
by a co-sharer in the holding u/s 14 (b) secondly, of the Right of Prior Purchase Act. Here the suitor claims ownership and possession by pre-
emption. By virtue of Sections 3, 4 and 5 the land in suit vested, from the appointed date, either in the vendee or is the tenant, if any, under him or
in the State or in none of them depending again on the related questions stated above, Suppose it is found that the land vested in the vendee or his
tenant. The suit will collapse because the suitor has lost the right. Next suppose it is found that it vested in the State, the suit will collapse because
the right has got destroyed. Then suppose it vested neither in the vendee nor in his tenant and nor also in the State. In that case, the suit will
continue as the right subsists. Next take a pending suit for declaration of title and injunction, the plaintiff being in possession of the land in suit. On
the reasoning given above the land in suit continued, from the appointed date, either to vest in the plaintiff or it vested in the State. In the first case
the suit will continue because the right subsists. In the second case the suit will collapse because the right has got destroyed. Then take a pending
case for joint possession by the plaintiff co-owner out of possession against the defendant co-owner in possession. On the reasoning given above
the land vested, from the appointed date, either in the defendant co-owner or in the tenants, if any, or in the State or continued to be owned by the
parties, as before, depending on whether or not the new Act applied to the land in suit: and, if it so applied, whether it vested in the tenant, the
defendant co-owner, or the State. In case the land in question was not affected by the new Act the rights of the parties over it continue to be as
before and the suit will continue as the right subsists. In case it vested in the defendant co-owner as actual possessor thereof, the right must be held
to have been lost and the suit must collapse. Same will be the case if the land in question vested in the tenant. If the land in question vested in the
State, the right has got destroyed and the suit must collapse. Here I have assumed that the plaintiff co-owner does not fulfill the conditions set out in
Section 7. If he fulfils those conditions, his right subsists to the limited extent provided in that section but the remedy gets changed because the
authority before whom he has to seek the relief is the prescribed authority. Then consider a pending action for eviction of a person from land
underneath and appurtenant to his dwelling house. Suppose it is found that the person sued against was a tenant or is a member of the scheduled
caste or is a landless person. In either case the action must collapse by virtue of Section 49 because the right though kept alive under it, the remedy
has been barred. Suppose it is found that the person in occupation was neither a tenant nor a person belonging to schedule caste nor also a
landless person. In that case the right and the remedy both subsist and the action will continue. In the same case assume that the plaintiff has
claimed an additional relief for damages or arrears of rent. The right to recovery such damages or rent is not affected by the new Act nor also the
remedy in respect thereof has been barred or changed under the Act and as such the suit will partly survive in case the occupier was a tenant or is
a person belonging to the scheduled caste or in a landless person. If the case be otherwise, the suit will survive and continue in its entirety. Then
consider a case where the landlord had sued his tenant for ejectment and arrears of rent. On the reasoning given earlier the land in question either
vested in the tenant or in the State or in none of them. In the first case the action for ejectment will collapse because the right in respect thereof is
lost while that for arrears of rent will continue because it pertains to a period when the tenancy was valid, and the right subsists. In the second case,
the right to seek ejectment gets destroyed and the action must fail to that extent, but the right to recover the arrears, of rent or damages subsists
and it will continue. In the third case the action will continue as the right to seek ejectment and the right to recover damages or arrears of rent both
subsist.
In the instances just considered, as might as noticed, the fate of an action, whether instituted before or after the new Act became operative,
depends ultimately on the question whether or not a particular land has vested in the State or in any other person. By virtue of Sections 3, 4 & 5
the decision on this point depends on the fact whether it is land, to which the new Act applied, and if it so applied, who was in cultivating
possession thereof on the material date and whether or not it exceeded the ceiling limit. These are jurisdictional facts and whosoever has got power
under the new Act to determine the main question stated above, has got the power to determine these facts. In fact his power to declare whether a
particular land has or has not vested in the State or in any other person depends on the determination of these facts, which he may do either on the
admission of the parties or"" otherwise by holding a proper inquiry in accordance with the Rules.
By Rule 20 of the Agrarian Rules, 1973, a Circle Officer has been invested with the power and jurisdiction to make a mutation order
consistently with Sections 2, 4 and 5 directing that the rights and title in land have vested in the State or in any other person, as the case may be.
The power and jurisdiction to make a mutation order obviously carries with it the power to refuse to make such order, if necessary. The exercise
of this power and jurisdiction by the Circle Officer, one way or the other, as we have noticed in the preceding paragraph, is dependent upon the
determination of the collateral facts mentioned therein. The question arises whether this power and jurisdiction is exercisable by the Circle Officer
exclusively or concurrently with a civil court or other officer or authority before whom such question arises; I will consider this question with
reference to the following two classes of cases separately;
Cases falling u/s 9 of the CPC usually described as civil cases;
Cases falling under the specified Acts and allied Acts, commonly known as Revenue cases. Section 36 of the new Act reads:
Notwithstanding anything contained in any law for the time being in force-
(1) No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act or the
rules made thereunder required to be settled, decided or dealt with or to be determined by any officer or authority appointed under this Act or the
rules made thereunder,
(2) No order of any officer or authority mentioned in sub-section (1) shall be called in question in any Civil Court.
This section bars the jurisdiction of civil courts in matters specified therein. The section is widely worded. It forbids the civil courts from dealing
with or adjudicating upon any question or matter which is by or under the new Act or the Rules made thereunder required to be dealt with or
adjudicated upon by an officer or authority appointed under the new Act or the rules made thereunder. It also provides that any order by such
officer or authority shall not be open to question in any civil court. This section has obviously reference to the jurisdiction exercised by the civil
courts in respect of civil cases falling u/s 9 of the Code of Civil Procedure. There is no corresponding provision barring the jurisdiction in like
manner of courts or authorities having jurisdiction to try and determine Revenue cases. On principle, however, the bar must be treated to be
equally applicable to such courts and authorities, the reason is that the new Act clearly indicates that the questions or matters arising thereunder
should be dealt with and determined by the special machinery created by or under it or the rules made thereunder and being a special Act dealing
with a particular subject comprehensively, the jurisdiction conferred on the officers and authorities constituting such machinery must be held to be
exclusive. In this background if a question is raised before any civil court or officer or authority whether or not a particular, land has vested in the
State or in any other person under the new Act, such court or officer or authority shall not have power and jurisdiction to decide this question or
even determine the collateral facts on which the decision of that question rests. Where, therefore, any such question is raised in a pending action or
an action instituted after the Act became operative, the court or the officer or authority before whom such question is raised should appropriately
stay its hands in the matter pending determination of that question by the competent authority under the new Act
From what has been stated above two questions incidentally emerge which deserve notice. These are :
Whether Section 36 can operate to exclude the jurisdiction of this court under Article 226 of the Constitution of India or u/s 103 of the
Constitution of Jammu and Kashmir;
Whether the bar created by Sec. 46 (sic) (S. 36) against the exercise of jurisdiction by the civil courts is absolute.
In my opinion Section 36 does not, either on its terms, or on principle stand as a bar to the exercise of the jurisdiction by a High Court under
Article 226 of the Constitution of India or u/s 103 of the Constitution of Jammu and Kashmir as the Constitution is supreme and any Act of the
Legislature cannot operate to divest the High Court of the jurisdiction conferred on it by the Constitution. Accordingly in appropriate cases the
High Court can interfere with an order made by a Circle Officer or any other authority under the new Act.
Then comes the question regarding civil courts. In the words of the Privy Council in AIR 1940 105 (Privy Council) it is well settled that-
Even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied
with or the statutory Tribunal has not acted in conformity with the fundamental principles of the judicial procedure.
Dealing with these observations, their Lordships of the Supreme Court in Firm and Illuri Subbayya Chetty and Sons Vs. The State of Andhra
Pradesh, observed:
Non-compliance with the provisions of the Statute to which reference is made by the Privy Council must, we think, be noncompliance with such
fundamental provisions of the Statute as would make the entire proceedings before the appropriate authority illegal and without jurisdiction.
Similarly, if an appropriate authority has acted in violation of the fundamental principles of judicial procedure, that might also tend to make the
proceedings illegal and void and this infirmity may affect the validity of the order passed by the authority in question. It is cases of this character
where the defect or the infirmity in the order goes to the root of the order and makes it in law invalid and void that these observations may perhaps
be invoked in support of the plea that the civil court can exercise its jurisdiction notwithstanding a provision to the contrary contained in the relevant
statute.
Accordingly where a Circle Officer makes or refuses to make an order declaring that a particular land has vested in the State or in any other
person, the order can be challenged before a civil court on merits if it was passed in violation of the fundamental provisions of the new Act or of
the fundamental principles of judicial procedure. In what cases such a plea can be raised, it is not necessary for me to state in this case. Broadly
speaking such a plea may be available where the Circle Officer has exercised jurisdiction assuming facts necessary for the exercise thereof or
determined the same without following the procedure prescribed in the rules.
At this stage may be noticed two single bench judgments of this court in Thakur Kartar Singh v. Gaffar Lone, (1973 J & K LR 851) and
Taramani Radial v. Thakur Dass, (1973 1 Kash LJ 393).
The first case was a suit for possession of land measuring 7 kanals and 7 marlas. The plaintiff claimed the land on the basis of title pleading that
the defendant has forcibly occupied the same. The defendant contended that he was a tenant. An application was made that the suit had abated.
Dealing with the application, my learned brother, Mr. Mian Jalal-ud-Din, J. observed:
The question involved in the present suit is as regards the status of the defendant. According to the plaintiff the defendant is in unauthorised
occupation of the land and therefore is a trespasser. But according to the defendant he is a tenant of the land in dispute. The question whether the
defendant is in unauthorised occupation of the land or is a tenant shall have to be decided and determined by the prescribed authority under the
Act. u/s 3 of the Agrarian Reforms Act the right of ownership of any person is to extinguish on the 1st day of September, 1971 and the same is to
vest in the State with effect from the date the Act comes into force. So according to Section 3 the ownership rights of the plaintiff have vested in
State. u/s 5 the land so vested in the State u/s 3 shall vest in ownership rights in the person holding such land in personal cultivation on the first day
of September, 1971, notwithstanding anything contained in any law for the time being in force. In this way the plaintiff's ownership in the land has
vested in the State and as such in my opinion he cannot maintain the present suit.
These observations may be read as laying down three propositions of law namely:
That the question to be considered by a civil court is who was in cultivating possession on the material date;
That there is a presumption under the new Act in a case like the one before the learned Single bench that the land in suit has vested in the State;
and
That the civil court has jurisdiction to determine whether or not a particular land has vested in the State.
If that be so, as it seems, I would say, with respect, that the law laid down in this decision is not correct in view of what I have stated hereinbefore
in this judgment.
The second case was a suit for declaration that the plaintiff was the owner in possession of the land and manager of temple known as Thakur
Dwara Nursing Jee Maharaj situate over the suit land. An application was made by the defendant that the suit had abated u/s 52 of the new Act.
Dealing with the application, my learned brother, Mr. D.D. Thakur, J. as he then was, observed :
The argument of Mr. Joginder Singh is that since it is a suit which was pending in a civil court on the date appointed for the commencement of the
Act, therefore it must abate u/s 52 thereof. He has tried to substantiate his argument by making reference to Section 3 and argued that by force of
Section 3 of the Act the ownership of the land the subject-matter of the dispute stands extinguished and vests in the State, as the plaintiff was not in
personal cultivation of the suit land, on the crucial date. According to him the moment the fact of the plaintiff being out of possession is proved, the
ownership of the property must vest in the State as a necessary consequence and therefore there is no question of the suit being continued in
respect of the property which has vested in the State. The argument does not appear to be correct. It is true that Section 3 of the Act contemplates
extinction of the ownership rights in the land which is not in the personal cultivation of the owner, but the words 'personal cultivation' have a
significance. A person may not be in personal cultivation of the land because he has let out the land to a tenant. He may be at the same time out of
possession because he is dispossessed by a trespasser. In the latter case however it cannot be said that the mere fact that the trespasser has
succeeded in taking away the possession of the owner, the extinction of his right must follow. The fundamental purpose which the J. and K.
Agrarian Reforms Act was intended to achieve was to bring about the abolition of ownership of lands which were not held in personal cultivation
by the owner but were held by tenants. The intention could not be to come to the rescue of a trespasser or to a person in forcible occupation and
thereby confer a right on him which in the ordinary course he was not entitled to. This interpretation of Section 52 of the Act is consistent with the
definition of the term ""personal cultivation"" contained in Section 2 sub-section (7), Explanation 2 of the Act which expressly states that where land
has been occupied unauthorisedly the person who but for such an unauthorised occupation would have been personally cultivating such tend shall
be deemed to be in personal cultivation. The first argument of Mr. Joginder Singh therefore cannot prevail.
His next contention is that in Section 52 the words ""under any of the Acts mentioned in sub-section (1) of S. 51 abate"" qualify only the proceedings
which are pending before the Government. According to him the suits pending in the civil courts need not arise out of any of the acts mentioned in
sub-sec. (1) of S. 51. This interpretation also is not possible to be placed on Section 52 of the Act. Before a suit can fall within the purview of
Section 52 of the Act two conditions must stand satisfied. Firstly that the suit be pending on the date of application of the Act in a civil court or any
other authority mentioned in Section 52 and secondly that the suit must have arisen out of any of the Acts mentioned in sub-section (1) of S. 51.
The Acts mentioned in sub-section (1) of S. 51 have absolutely no bearing on the issues involved in the suit. The suits which arise out of the Acts
mentioned in sub-section (1) of S. 51 of the Act alone are to abate under Sec. 52 of the Act. A suit like the present one does not fall within the
purview of Section 52 of the Act. The present suit cannot therefore be said to have abated.
There can be no dispute with the proposition of law laid down in the judgment that Section 52 does not apply to a pending case unless such case is
relatable to one of the Acts mentioned in Section 51 (1). However, the judgment may, in relation to a case in which Section 52 is invoked, be read
as laying down two propositions of law;
That the question to be considered by the Court or other authority seized of the case is who was in personal cultivation of the disputed land on
the material date in the sense contemplated by Section 2 (7);
That the court or other authority has power and jurisdiction to decide whether or not the disputed land vested in the State u/s 3 from the
appointed date.
If that be so, as it really is, I would say with respect that the law so laid down is not correct in the view expressed by me earlier in this judgment.
There is one point which, though not so important, deserves consideration as it is likely to arise in the pending cases generally. That point is:
how can a party show that a pending case is or is not maintainable under the new Act when it could not raise necessary pleas or objections
connected therewith as the Act was not in force at the time of filing of such case. The simple answer is that the party can seek permission to raise
additional grounds of claim or objections based on the Act either by way of amendment of its pleadings or by way of filing a supplementary
memorandum of grounds of appeal or revision or in any other appropriate manner depending on the nature of the case and the stage at which it is.
There is no procedural difficulty in doing so. of course, the court may or may not grant the prayer depending on whether it is genuine or not.
Having dealt with the general question raised in the beginning and the allied questions, let me now proceed to deal with the cases before us.
Cases at Nos. 1 to 12 are civil appeals, first appeal or second appeal, instituted before 1-5-1972, the date on which the new Act came into force.
Case at No. 13 is a revenue first appeal arising out of the application u/s 46 of the Tenancy Act which was instituted before the said date. Case at
No. 14 is a civil revision arising out of a pending civil suit instituted before the commencement of the new Act. These appeals and the revisions
were pending When the Act became operative.
At the hearing before us the learned counsel for the parties touched only questions of general nature and those too in a casual manner, perhaps,
because they had little conception of the new Act Even the Advocate General who was invited by us to project the view held by the then
Government on the questions raised before us, could not do much, perhaps, because the Officers of the Government, who could brief him, do also
have no clear conception of what the new Act provides. If the few provisions that came up for interpretation before us can be a pointer as they
really are, the new Act is not well drafted and this appears to me to be one of the main reasons which has made its underlying scheme obscure and
rendered it difficult for most of the people to comprehend its scope and content I apprehend that the imperfections in drafting might even lead to
avoidable and unnecessary litigation. The Government will be well advised to have the Act examined from drafting point of view and take steps to
remove the drafting errors and imperfections, if any, detected as a result of such examination. As at present advised by the language, object and
scheme of the new Act I have dealt with and determined all the questions that were raised at the bar in the cases before us. Let these cases be
placed now before the respective beaches for appropriate orders in the light of this judgment.
Jaswant Singh, J.
I have gone through the elaborate and comprehensive judgment prepared by my learned brother, Mufti, J. and agree with the reasoning and
conclusions arrived at by him. I have only to add that the view expressed by my learned brother regarding jurisdiction of civil courts receives
support from a recent decision of the Supreme Court reported as Katikara Chintamani Dora and Others Vs. Guntreddi Annamanaidu and Others,
.
Ali, C.J.
I agree with the judgment proposed by my learned brother, Mufti, J., who has succinctly analyzed the various provisions of the Act and has
held that in most matters the jurisdiction of the civil court is ousted. I would, however, like to add that the main object of the Act is to secure the
land for the tiller and to take away the surplus land from the landlord and distribute it to the landless. I find, however, that under the rules the Circle
Officers have been invested with very wide powers in respect of attesting mutations, deciding important rights of the parties, determining the
question of possession prior to the relevant date as also pronounce upon the question as to whether possession is authorised or not. The junior
officers, like the Naib-Tehsildars, have been designated as Circle Officers and I feel that if these junior officers are not able to exercise powers
properly, this will defeat rather than advance the objects of the Act. In all these matters which are undoubtedly matters of moment, the jurisdiction
of the civil court is completely ousted and even in cases where findings have been given by senior judges presiding over the civil courts, the same
may be wiped out for a fresh determination under the Act to be made by Circle Officers, In these circumstances the Government would consider
the desirability of designating senior revenue officers who have sufficient and varied judicial experience to decide the matters referred to above. My
learned brother has also pointed out that the Act is not happily drafted and contains several lacunae. We understand that the Government is
contemplating a wholesome Amendment of the Act and we hope that in doing so, the observations made by me as also by my learned brother will
be duly kept in mind.